State v. Pack

516 N.W.2d 665, 1994 S.D. LEXIS 68, 1994 WL 194253
CourtSouth Dakota Supreme Court
DecidedMay 18, 1994
Docket18341
StatusPublished
Cited by18 cases

This text of 516 N.W.2d 665 (State v. Pack) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pack, 516 N.W.2d 665, 1994 S.D. LEXIS 68, 1994 WL 194253 (S.D. 1994).

Opinions

MILLER, Chief Justice.

Larry H. Pack pled guilty to two counts of rape, SDCL 22-22-1(5), a Class 3 felony with a maximum punishment of fifteen years’ imprisonment and a $15,000 fine. The court ordered that Pack serve two consecutive fifteen-year terms, that upon release or parole he attend a sexual offender program and receive substance abuse counseling and that, upon his release from the program, a mental health counselor would determine whether he would be allowed to have contact with minor children.

On appeal, Pack claims his sentence is excessive and violates the Eighth Amendment to the United States Constitution and Article VI, § 23 of the South Dakota Constitution. We affirm.

FACTS

Pack moved to South Dakota in September 1990, after the State of Wyoming began investigating him for sexual contact involving his middle stepdaughter, T.O.1 His wife, S.O. (who is also the mother of the girls involved), and the children followed. Pack then began raping his youngest stepdaughter, thirteen-year-old J.O. He followed the same pattern he had established in his sexual predation of his oldest stepdaughter, P.O.2 He would wait until his wife was at work, send the younger children out of the house and force J.O. into sex through threats of being beaten, abandoned by S.O., or grounded. Pack continued to rape J.O. twice a week for two years.

In October of 1992, due to reports of truancy and sexual abuse, the South Dakota Department of Social Services and the Lawrence County Sheriff interviewed J.O. and learned of Pack’s activities. On October 23, 1992, a grand jury indicted Pack on twenty-six counts of rape of J.O. between September 1990 and October 1992.

On February 10, 1993, pursuant to a plea agreement, Pack signed a petition to enter a plea of nolo contendere to two of the charges. On March 9, 1993, he amended his plea to guilty. The remaining charges in the indictment — twenty-four additional counts of rape and a fugitive from justice complaint — were dismissed. In addition, the Lawrence County State’s Attorney’s Office agreed not to file a Part II Information against Pack, to bar subsequent prosecution of any uncharged incidents of rape between September 1990 and October 9, 1992, and to make the agreement contingent upon completion of a plea agreement between Pack and the State of Wyoming, which called for any Wyoming sentence to be served concurrently with the sentence imposed for the South Dakota charges. As noted earlier, the trial court sentenced him to two consecutive fifteen-year terms in prison.

Pack filed an appeal on April 30, 1993. On May 10, 1993, he requested that this court remand his appeal for the purpose of allowing a motion to the trial court seeking a hearing on the legality of his sentence. We granted the remand. The trial court conducted two motions hearings and entered an order upholding the legality of Pack’s sentence. He appeals.

ISSUE

WHETHER PACK’S SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.

It is important to note that Pack’s motion to this court for remand to the trial court to request hearing on his sentencing was to determine the legality of his sentence, not a request for Eighth Amendment review. Pack’s thirty-year sentence is clearly within statutory limits for two counts of rape of a [667]*667minor. SDCL 22-22-1;3 SDCL 22-6-1.4 Therefore, as the trial judge found, it is “not facially illegal.” Nor does Pack allege any other circumstance under which we have found sentences to be illegal. See State v. Tibbetts, 333 N.W.2d 440 (S.D.1983) (finding denial of credit for presentence incarceration rendered sentence illegal); State v. Ford, 328 N.W.2d 263 (S.D.1982) (finding sentence illegally increased after oral pronouncement of sentence). Therefore, we apply the following standard of review:

‘On appeal, we first determine whether the sentence “shocks the conscience” or is so disproportionate to the crime that it activates the Eighth Amendment “within and without jurisdiction” proportionality tests.... ’ State v. Lykken, 484 N.W.2d 869, 879 (S.D.1992); State v. Basket, 468 N.W.2d 413, 418 (S.D.1991). Accord State v. Andrews, 393 N.W.2d 76, 82-83 (S.D.1986); Weiker II, [State v. Weiker] 366 N.W.2d [823] at 827 [ (S.D.1985) ]. ‘Absent a sentence which is so excessive in duration that it shocks the conscience of the court, it is well settled in South Dakota that a sentence within statutory limits is not reviewable on appeal.’ Lykken, 484 N.W.2d at 879; State v. Janssen, 371 N.W.2d 353, 356 (S.D.1985) (citing cases). Stated alternatively, we will only engage in extensive review of a sentence where we have first determined the sentence was manifestly disproportionate to the crime. State v. Holloway, 482 N.W.2d 306, 310-311 (S.D.1992); Weiker II, 366 N.W.2d at 827. ‘If a sentence is manifestly disproportionate to the crime, [in light of the gravity of the offense and harshness of the penalty] .... then the other two factors listed in Helm [sentence imposed on others in the same jurisdiction and in other jurisdictions] become more focused and require extensive review.’ Weiker II, 366 N.W.2d at 827. See also [Solem v.] Helm, 463 U.S. [277] at 292, 103 S.Ct. [3001] at 3011, 77 L.Ed.2d [637] at 650 [ (1983) ].

State v. Castaneira, 502 N.W.2d 112, 114-15 (S.D.1993) (quoting State v. Gehrke, 491 N.W.2d 421, 423 (S.D.1992)).5

The test to determine whether a sentence is so constitutionally offensive as to shock the conscience is two-fold. State v. Shilvock-Havird, 472 N.W.2d 773 (S.D.1991).

First, is the punishment so excessive or so cruel ‘as to meet the disapproval and condemnation of the conscience and reason of men generally.’ And second, whether the punishment is so excessive or so cruel as to shock the collective conscience of this court.

Id. at 779.

When determining a fitting sentence, the sentencing court should “ ‘acquire a thorough acquaintance with the character and history of the man before it.’ ” State v. Carsten, 264 [668]*668N.W.2d 707, 709 (S.D.1978) (quoting United States v. Hendrix, 505 F.2d 1233, 1235-36 (2d Cir.1974) cert. denied, 423 U.S. 897, 96 S.Ct. 199, 46 L.Ed.2d 130 (1975)); State v. Murphy, 506 N.W.2d 130 (S.D.1993).

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State v. Pack
516 N.W.2d 665 (South Dakota Supreme Court, 1994)

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Bluebook (online)
516 N.W.2d 665, 1994 S.D. LEXIS 68, 1994 WL 194253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pack-sd-1994.